I'm a privacy pragmatist, writing about the intersection of law, technology, social media and our personal information. If you have story ideas or tips, e-mail me at khill@forbes.com. PGP key here.
These days, I'm a senior online editor at Forbes. I was previously an editor at Above the Law, a legal blog, relying on the legal knowledge gained from two years working for corporate law firm Covington & Burling -- a Cliff's Notes version of law school.
In the past, I've been found slaving away as an intern in midtown Manhattan at The Week Magazine, in Hong Kong at the International Herald Tribune, and in D.C. at the Washington Examiner. I also spent a few years traveling the world managing educational programs for international journalists for the National Press Foundation.
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The Privacy Price To Cross The Border

It’s rare that we want strangers pawing through our digital devices, giving them the opportunity to peruse emails, private messages, photos, Twitter DMs, Facebook pokes, and all the other myriad bits of our personal life captured by the digital umbilical cords that are our smartphones. And when I say “rare,” I mean that it’s something we hope never, ever happens to us. But if you’re crossing the border, it’s something that could happen to you; it happens to thousands of people each year. It even happens to nominally-famous types. Enter Canadian Chad Rook, an actor in the new CW show Cult (which is, coincidentally, a show about mysterious disappearances). Or rather don’t enter. While attempting a road trip in late January from Vancouver to L.A. to join his cast members for the show’s premiere, Rook was detained at the Canadian border for 9 hours, where he had to hand over his iPhone and iPad so that U.S. customs officials could go through his email, Twitter and Facebook accounts looking for evidence that his trip was for work not pleasure. Based on what he calls “no evidence,” the officials gave him a five-year ban from entering the country.

Rook said he had planned a three month visit to L.A., where he had scheduled some meetings with casting agencies and Warner Brothers to advance his application for a U.S. work visa “for talent” that would allow him to move to the city full-time in the future. He also planned to try out for a few pilots while in town. He wasn’t technically working, because he wouldn’t be paid for any of this, but one of the border guards was suspicious.

“I could tell right away he wasn’t in a good mood,” said Rook. “I deal with these people a lot and could tell something was off.”

He was detained and interrogated for nine hours in a “little white box of an interrogation room.” The guards asked him questions, but decided the truth would be revealed better by his devices. They took his smartphone and iPad, asked him for the pin codes to both, and then left the room with the devices to go through them. For anyone with anything sensitive on their devices, this would surely be a harrowing experience. Make sure you’ve wiped any, ahem, revealing photos from your phone before a border crossing, or you could wind up even more exposed than when going through a TSA body scanner.

“I tried to be cooperative. I’ve been to the States many times. I am as polite as possible because I know that’s the easiest way to get through,” said Rook. “I wondered if their taking my devices and asking for my passwords was an illegal invasion of privacy. But I thought it would cause more havoc if I didn’t turn them over. They said I had to give up my passwords or they would hold me there.”

When the officers returned they said they’d gone through his Facebook, his Yahoo email, his Twitter, his call logs and his text messages. His politeness did not pay off. The official sent him packing back to Canada for “fraudulent activity and misrepresentation,” and gave him a 5-year ban on entering the country for allegedly trying to seek permanent residence without his papers. No Cult season premiere party for him!

Hanni Fakhoury, an attorney at digital rights non-profit Electronic Frontier Foundation, says your privacy rights at the border are limited. The Supreme Court has ruled that “routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” In other words, if border guards want to search you and your devices, they can. The Fourth Amendment against unreasonable searches is trumped by the U.S. government’s right as as sovereign state to search what goes in and out of its borders.

“At the border, police have a much easier time of searching things,” said Fakhoury. “They can ask for anything. And you have a limited ability to say no. You can say no but there are consequences. They might not let you in. They might detain you for 25 hours while they get a warrant. Or they might just seize your property.”

The ACLU EFF is currently trying to fight that last one, defending a man who had two laptops and a camera taken from him while trying to cross the Mexican border. They were taken 170 miles away to Tucson, where they were examined and discovered to contain child porn. Whoops!

Rook — who has made the same trip to L.A. “25 or 30 times” without having his devices searched — says he never thought about saying no.

“There were three officers standing over me. I felt intimidated, but I also felt like I had nothing to hide,” he said.

Though Rook could tell when he got his devices back that a few Yahoo emails from his agent had been read, the officers did not cite any private messages in explaining the ban. They referred instead to a public tweet Rook had sent — “All my LA actor and director friends, let’s hook up” — and said they looked at his IMDB page which mentioned previous jobs in the U.S., including working as a model in Tampa, Florida.

“It was so scary,” says Rook. “They could have gone through my private photos. There are no explicit photos but it’s private stuff. It’s weird some guy is going through that. I have never felt more violated than when this happened. It’s rare to be treated this way.”

Rook, who has a house and a wife in Vancouver, says the guard’s allegations that he was setting up residence in the U.S. while seeking work as an actor are false; he is trying to get his ban overturned. After receiving “hundreds” of letters from supporters and from other people who have gone through uncomfortable searches at the border, he hopes the problem will get attention beyond his own individual case.

“One way or another, we will keep on fighting this to not only have this error removed and the ban lifted but to also make some changes to prevent this from continuing to happen to others,” says Rook, who describes the process as “Russian roulette at the border – depends on which guard you get.”

It’s likely not good news to him then that the Department of Homeland Security’s privacy watchdog recently took a look at the issue of warrantless seizures of digital devices at the border and, earlier this month, okayed the status quo.

Rook is not alone in his battle though. The EFF and ACLU are pushing for a search-warrant requirement for smartphone seizures at the border, but offers this guide in the meanwhile. (Moral of the guide: Data encryption is your friend.)

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The search of one’s laptop or cell phone at the border is particularly troublesome for lawyers who may have protected attorney-client communications or work product on the devices. This is a growing problem as law firms expand their practices globally. Encryption is one way to protect confidential client information, but if the authorities are hell bent on obtaining access to the information, encryption may result in the device being confiscated until a warrant can be obtained. An alternative is to store case materials in the cloud and wipe the device clean of any client communications before crossing the border.

1. When he was given the 5 year ban, was that a on the spot type of thing, or did he get a letter from the American 6-8 weeks after the incident informing him of it?

2. I was thinking when it was being described how 3 officers came over and he felt intimated, that would be the equivalent of 3 cops walking up to your car, and asking to search the glove box or trunk. It may feel intimidating, but can a person still say no?

3.In future situations, if people are going to be held for numerous hours like this individual for almost 10 hours, and they do get the ok to pass into the country, who will pay for the new flight, and/or other accommodations, such as lodging?

So, this does sound like a pretty terrible experience, but what I’m not clear on is whether he was actually attempting to violate immigration law. It kinda sounds like he was.

If it is illegal to enter the country for the purpose of obtaining work or to enter the country to try to get permanent residency without your papers (I’m a little unclear with what he’s being cited for violatning). And if he in fact was doing one of those things (whether intentionally or not), then indeed he broke the law, and if the punishment is 5 years ban from entering the country, then it should be enforced.

So, if what he did was actually illegal, then I say more power to the gaurd who stopped him and did his job.

I also agree with the precedent that persons entering the country should be limited in their 4th amendment rights when entering the country.

Anyway, it is still a very good article because I never knew this sort of thing went on. I’m also probably close to alone in belief that American citizens should be entitled to much greater rights, priviledges, and protections under the American constitution than non-citizens. I would absolutely expect that a non-citizen entering the country be much more closely scrutinized than a citizen exiting the country. We should be worrying about Canadans entering the US, and Canadia should be worried about Americans entering Canadia.

Art Bell, a late night radio host had problems in June 2009 with the same agency. His wife was denied a visa even though they were legally married and had one child at that time. Their incredible story can be read here http://www.coasttocoastam.com/article/art-bell-s-wife-denied-u-s-visa

There are some more complicated steps one can take here. In one scenario in the guide, an employee’s company encrypts her data and doesn’t provide the password for her to decrypt it until she’s arrived at her destination. That way she can’t hand the password over at the border because she doesn’t know it.